Crime & Federalism

Today life is complicated. If you make one wrong move on social media you'll lose your job. You may receive death threats or have a Swatting attempt made on you. An internet hate mob will form around you to publicly shame you.

If you are a rational, thinking person life may seem overwhelming. Nothing makes sense. I have a guide for you.

These are rules you MUST follow. Do not question them unless you want to be attacked and labelled a "dudebro" (if you're a man) or a woman suffering from internalized misogyny. 

Women never lie. Asking a woman for proof of her claims (that she was harassed on the Internet or received a death threat) is harassment. 

When a woman claims to be a rape victim, asking for evidence is part of rape culture and makes you an apologist for rapists on par with Holocaust deniers.

When a woman commits a hate crime hoax, you cannot call her out. Even suggesting the woman was lying to create fame and fortune for herself would be harassment.

Gender is a social construct lacking any basis in reality.

When a man claims to be a woman, you must believe him. Otherwise you are a transphobe.

When a woman claims to be a man, you must believe her. Otherwise you are a transphobe.

Race is a social construct lacking any basis in biology.

When a white woman claims to be black, you may claim the person is not really black and demand the person submit to DNA testing.

Questions you are not allowed to ask, as asking these questions makes you a racist transphobe dudebro or woman suffering from internalized misogyny:

Is race a social construct or does it have biological origins? If race is a social construct, then why can't a person transcend his or her race?

If a person cannot transcend race, how may he transcend gender?

How does a woman prove she is a man or a man prove she is a woman?

How does a person prove he is black or white?

What does it mean to be black or white? Is there something other than skin color inherent about "being black," and if so, what is that?

May we ask Leigh Alexander, a social justice warrior and critic of GamerGate who has made racist jokes in the past, to submit to DNA testing? Is Leigh Alexander really black, or is she a white woman like Rachel Dolezal who is faking her membership in an oppressed race as a way to profit from gullible people?

Do we have paperwork or DNA tests proving Leigh Alexander is half-black? #RachelDolezal pic.twitter.com/RuM64PEnei

— Mike Cernovich (@Cernovich) June 12, 2015

On college campuses and Twitter accounts everywhere, "threat" has taken on an overbroad definition. Merely disagreeing with someone is harassing and threatening conduct. Calling someone a bad name or hurting their feelings is a threat.

But what is an actual, get-you-thrown-into-jail threat made online online? 

The Supreme Court was supposed to answer that question in Elonis v. United States, which involved a real piece of crap who posted stuff online that in my view seems quite clearly as threatening. The Elonis opinion answered one question while leaving another open.

Quick background: A "true threat" is not protected by the First Amendment. Criminal threats made online are a federal offense under 18 U. S. C. §875(c), which makes it a crime to “transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another."

What is a "true threat"?

Now that we know true threats are a crime, we have to find out what a true threat is. At Elonis' trial for making threats online, the jury was told (emphasis added):

“A statement is a true threat when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual.” 

The Supreme Court held in Elonis it is not enough for a statement to make a "reasonable person" perceive the defendant's statements as an expression of an intent to inflict bodily injury to cause death.

The Court wrote:

In light of the foregoing, Elonis’s conviction cannot stand. The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.

Great, what is the standard? How can you show something is a true threat?

In an opinion only lawyers will grok, which is something I dislike about the law as it has become outside the understanding of even highly intelligent people, the Court set up some goal posts. Sort of:

There is no dispute that the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.

In other words, if government shows someone had the intent to make a threat, then it's a true threat. (How does the government prove what you intended? That's a question for another day!)

Also, if the government can show you intended the communication to be viewed as a threat, then it's a true threat.

But it's not enough to merely show that a reasonable person would have interpreted a person's words as a threat.

Does that make sense? (Yes. No. Sort of. We shall see.) 

In his concurring opinion, Justice Alito points out the Elonis ruling is, as the cool kids say, problematic.

Justice Alito correctly observed the confusion caused by today's Elonis opinion. In his concurring opinion, he wrote:

Did the jury need to find that Elonis had the purpose of conveying a true threat? Was it enough if he knew that his words conveyed such a threat? Would recklessness suffice? The Court declines to say. Attorneys and judges are left to guess.

Exactly.

What's my take on Elonis on online threats?

Don't wish death upon anyone. Don't tell people you want to see them personally die.

Even though Elonis suggests merely wishing death on others would quite clearly not be a true threat, why do it?

There are enough ways to make your point without wishing death or bodily harm on another.

If you don't want to address the arguments others make: Call people fat, call them ugly, call them stupid.

But there is no reason to wish them dead. 

If you personally know someone, this is especially true.

And never ever say you are going to personally harm someone, especially if you know that person or have a prior relationship making those words appear like an expression of your intent to cause bodily harm on or to kill someone.

P.S., Elonis clearly eviscerates social justice warriors.

After Elonis, any intimation that disagreement or insults are online threats is the sign of mental instability.

The Supreme Court is not ready to gut the First Amendment to appease hateful radicals who attempt to silence and censor us all.

Title IX hearings, bogus restraining orders, and campus speech codes remain a threat to robust speech. Fortunately, criminal prosecution does not.

Read next: How Zoe Quinn Conned a Judge into Violating the First Amendment.